Columnist William Newman: Praying at the 50-yard line

  • In this Oct. 16, 2015 file photo, former Bremerton High School assistant football coach Joe Kennedy, obscured at center, is surrounded by Centralia High School football players in Bremerton, Wash., after they took a knee with him and prayed following their game against Bremerton. MEEGAN M. REID/KITSAP SUN VIA AP

Published: 2/7/2022 5:21:29 PM
Modified: 2/7/2022 5:19:52 PM

A Christian public high school football coach insisted on leading prayers with his players at the 50-yard line immediately after the game. The school district told him to stop and when he didn’t, fired him. That dispute now rests at the Supreme Court.

The Bremerton School District in Washington state recognized that a coach can exert a profound influence on high school students. It also appreciated that when the coach prominently and publicly leads prayers with his team on the playing field as part of a sports event, the prayers appear to be school-sponsored.

The district rejected both the idea and the appearance of a pray to play system. It reasoned that the First Amendment’s establishment clause prohibited the coach, Joseph Kennedy, from convening and conducting those prayers. The establishment clause blocks a governmental entity or its representative from endorsing or promoting religion or any particular religion. The coach-led prayer service being incorporated into the football game experience was out of bounds. But significant issues remained to be tackled.

The First Amendment guarantee of religious freedom includes not only the establishment clause but also the free exercise clause, which prohibits governmental interference with an individual’s religious observances. Coach Kennedy ignored the establishment clause and invoked the free exercise clause. He asserted that the school system’s treatment of him constituted an unconstitutional blanket ban on “demonstrative religious activity.”

During the litigation — he lost at the federal district court and also at the court of appeals — Kennedy has also relied on another and entirely different First Amendment argument. Prayer, he correctly argues, is a form of speech and expression, and religious speech enjoys as much protection as secular speech (also accurate). From these legal truths, he contends that when the government, here the school, interfered with his prayers, it violated not only his free exercise right but also his right to freedom of speech.

That claim relies in significant measure on Tinker v. Des Moines Independent School District, the 1969 case where students claimed a First Amendment right to wear black armbands in school to protest the Vietnam War. The Supreme Court decision, which the students won, includes these words: “First Amendment rights … are available to teachers and students.” Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” So the coach’s free speech argument is not frivolous.

But it’s wrong. Or, more accurately, based on the most relevant precedent, it’s wrong. In 2000, the Supreme Court decided in Santa Fe Independent School District v. Doe that student-led prayer over the loudspeakers before a high school football game violated the establishment clause. There the Court made clear that while teachers and students can pray privately in school, “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

Given that precedent, if the Supreme Court accurately describes Kennedy’s prayer service as part of the school-sponsored football game experience, the school system prevails. However, if the Court characterizes his prayers as non-public, non-coercive, and non-disruptive, Kennedy comes out on top. That would be the same result if the Court were to characterize his prayers as taking place outside his employment.

For Kennedy, reconfiguring the facts constitutes a smart strategy. Transmogrifying his public prayer into private expression would not exactly be water into wine, but it’s pretty close. Here are some of his alternative facts:

Even though his job description specifically included acting as a mentor and role model, his actions on the field immediately after time expired were not intended to affect the students on the field or the fans in the stands.

Notwithstanding that it was his position as coach that gave him access to midfield with his students and that he widely publicized these prayer services, he was engaged in personal prayer meant only for himself. Students were free to pass on participating, and they became part of his prayer circle voluntarily, as they have the right to do.

Ignore the evidence of students feeling pressured. If his players joined him, that was their business, not his. He simply was speaking — that is, praying — as a private citizen. And so on.

Some Justices who would be expected to back the coach have in other cases ruled against public employees who were fired for speaking out on the job. That’s awkward but hardly insurmountable. Supreme Court justices can always find a way around precedent, ignore or minimize inconvenient facts, or change the law. After all, once the Supreme Court makes a ruling, there is no further review.

Some members of this Court appear predisposed to rule in favor of a Christian litigant (the first sentence in the coach’s Supreme Court argument is “Joseph Kennedy is a Christian.”) who is claiming an abridgement of his religious liberty. But maybe, just maybe, two of the six so-called conservative justices won’t succumb to that last temptation.

Not likely. Still, a majority could write a decision that protects the important free speech rights of public employees while maintaining the wall of separation between church and state. For that, let us pray.

Bill Newman, a Northampton-based lawyer and radio show host, writes a monthly column.


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